No. 704.
Memorandum.
Admiral Polo called upon Mr. Fish, when the latter read to him a telegraphic dispatch, dated last evening, received this morning, from General Sickles, some words of which, he stated, are not capable of being intelligibly deciphered, but enough is translated to disclose the general purport of the dispatch. It presents a proposition on the part of the Spanish government which Mr. Fish says that the United States cannot accept.
Mr. Fish makes this statement and communication to Admiral Polo, inasmuch as it appears from General Sickles’s dispatch, now received, that he has requested his passports, and may have left Madrid.
He proceeds to say that it cannot be and it is not questioned that the Virginius was regularly documented with American papers when she sailed from the United States in October 1870, and that she was thus entitled to carry the flag of the United States; that the official report of the commander of the Tornado, published in Havana papers of the 15th instant, states that the Virginius bore the American flag when she was captured on the high seas by a Spanish vessel, and that the American flag was hauled down and the Spanish flag was hoisted by an officer of the Spanish navy.
He said that the United States deny the right of any other power to visit, molest, or detain on the high seas, in time of peace, any American vessel; that the exemption of the vessels of every power from visit or molestation in time of peace, and on waters common to all nations, is claimed and observed by all the great maritime powers, and is recognized by all the principal writers on international law.
That the propositions of Spain in the note communicated by General Sickles in his dispatch cannot be entertained, in that the first proposition practically asks the United States to consent that Spain shall hold and detain the vessel while she is seeking evidence to justify an act in derogation of the sovereignty and jurisdiction of the United States.
Admiral Polo then stated that he had received a strictly confidential and personal communication, requesting to be informed if it be possible to make an arrangement whereby, if the vessel and men be given up, Mr. Fish would engage that inquiry be instituted, and, if the result required, that punishment should be inflicted on those who had violated any laws of the United States, reserving, until further information, the salute to the flag.
After a short interval and absence, Mr. Fish, having consulted with the President, replied that if Spain should make this proposal, and should forthwith surrender the vessel and the survivors of her passengers and crew, the proposal would be accepted, and that the salute to the flag of the United States might be postponed until the 25th day of December next, to take place on that day; and that if before that date Spain should prove to the satisfaction of the Government of the United States that the Virginius was not entitled to carry the flag of the United States, and was carrying it at the time of her capture without right and improperly, the salute will be spontaneously dispensed with, as in such case not being necessarily requirable, but the United States will expect in such case a disclaimer of intent of indignity to its flag in the act which was committed.
Furthermore, if on or before the 25th of December it shall be made to appear to the satisfaction of the United States that the Virginius did [Page 987] not rightfully carry the American flag, and was not entitled to American papers, the United States will institute inquiry, and adopt legal proceedings against the vessel, if it be found that she has violated any law of the United States, and against any of the persons who may appear to have been guilty of illegal acts in connection therewith; it being understood that Spain will proceed, according to the second proposition in the note to General Sickles, to investigate the conduct of those of her authorities who have infringed Spanish laws or treaty obligations, and will arraign them before competent courts, and inflict punishment on those who may have offended; other reciprocal complaints to be the subject of consideration and arrangement between the two governments, and, in case of no agreement, to be the subject of arbitration if the constitutional assent of the Senate of the United States shall be given thereto.